12 July, 2023
Supreme Court interprets Montgomery and upholds decree of absolvitor for Forth Valley Health Board
Ampersand’s Una Doherty KC acted for the respondent in the appeal to the Supreme Court in the action McCulloch and others (Appellants) v Forth Valley Health Board (Respondent)  UKSC 26. On 12 July 2023, the Supreme Court handed down its judgment in this action which was described during the oral hearing as being the most important clinical negligence appeal in years. The Supreme Court refused the appeal. Una presented the oral submissions for the respondent at the hearing on 10 and 11 May 2023. Ewen Campbell, Advocate and David Myhill, Barrister appeared with her. The appellants were represented by Rob Weir KC and Ampersand’s Lauren Sutherland KC. The Dean of Faculty appeared for the GMC who were interveners.
This action arose out of allegations of negligence against a consultant cardiologist, after the death on 7 April 2012 of Mr McCulloch who suffered a fatal cardiac arrest as a result of cardiac tamponade. The alleged negligence related to the care given to Mr McCulloch in hospital prior to being discharged home on 6 April 2012. After proof, the Lord Ordinary found that there was one breach of duty but no causal link to the death, so decree of absolvitor was granted (Jennifer McCulloch and others v Forth Valley Health Board  CSOH 40). The appellants reclaimed, and the respondent cross-appealed the one finding of breach of duty. The appellants’ reclaiming motion was rejected, while the respondent’s cross-appeal was granted (Jennifer McCulloch and others v Forth Valley Health Board 2021 CSIH 21; 2021 SLT 695). The appellants were refused leave to appeal to the Supreme Court, but applied directly and in April 2022 were granted permission to appeal.
The appellants had two grounds of appeal: 1) that the lower courts had erred in their application of the law on information disclosure as set out in Montgomery v Lanarkshire Health Board 2015 UKSC 11, as they wrongly held that the reasonableness of a doctor’s decision whether to inform a patient about an alternative treatment was governed by the Bolam professional practice test, whereas the appellants’ position was that the reasonableness of an alternative treatment was a matter for the court; and 2) that the lower courts erred in law in not applying the principle as set out in Drake v Harbour (2008) 121 Con LR at  to the issue of causation. The appellants’ position was the Mr McCulloch should have been advised that non-steroidal anti-inflammatory drugs, such as ibuprofen, were a treatment option and that had he been so advised, he would have taken the drugs and not died.
The respondent’s position was that the lower courts were correct in their interpretation of the law as to the assessment of what is a reasonable treatment option, and that a reasonable treatment option is a clinically appropriate treatment determined by the medical profession on the Hunter v Hanley test. The consultant cardiologist reasonably and supported by responsible expert opinion did not regard non-steroid anti-inflammatory drugs as a reasonable treatment option in Mr McCulloch’s case, therefore she did not require to discuss them with Mr McCulloch. The appellants’ contention was not consistent with Montgomery.
In relation to causation, the respondent’s position was that there was insufficient evidence to establish a causal link between the alleged failure to discuss possible treatment with non-steroidal anti-inflammatory drugs and the death. The authorities on which the appellants sought to rely did not support a finding of a causal link in this case – causation required to be established on conventional principles.
In its judgment, the Court agreed with the findings of the lower courts and the respondent’s submissions, that the legal test which applies to the assessment of whether an alternative treatment is reasonable and requires to be discussed with the patient, is the professional practice test found in Hunter v Hanley and Bolam. Its decision and reasons on this issue are set out at paragraphs 56- 78, and 83.
The Court decided not to deal with questions of causation, given that there was no breach of duty and so causation did not arise (paragraph 82).